table of contents
Introduction
AustraliaBelow is information that will help you protect your trademark rights.
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*Average application review period in Australia *As of June 2018
Currently, the examination period from application to registration is approximately 4 to 6 months unless there is a reason for refusal.
Trademark Rights in Australia
A. Registrable trademarks
(1) Trademarks in Australia
It is defined as "a sign used or intended to be used to distinguish the goods or services of a person traded or offered in the course of a business from the goods or services of another person traded or offered in the course of a business."
A sign is also defined as "including a letter, word, name, signature, number, figure, brand, title, label, ticket, packaging appearance, shape, colour, sound or scent, or any combination thereof."
(2) Special trademark
- 3D trademark
- Acoustic trademark
- Fragrance trademark
- color trademark
- collective trademark
- certification trademark
- Protective Trademarks
- Series trademarks
B. From application to registration
(1) Creation of rights
- Adopt the registration principle.
- The first-to-file system will be adopted.
(2) Term of existence
- 10 years from the filing date.
- Renewable every 10 years
(3) Classification (goods or services)
- A single application multi-class system will be adopted.
- Adopt the international classification.
- Retail service system (Class 35) available
(4) Application documents (procedural language is English)
- ①Application form
*For trademarks that include characters other than Roman characters, provide the English translation or transliteration. - ②Trademark sample
- 3) Regarding priority, enter the required information in the application form (a priority certificate may be required).
(5) Examination
- ①Formal examination
The application documents are examined for formalities. In case of non-compliance, a notice is issued requiring the applicant to correct the deficiencies, within a period set for the response. - ②Substantive examination
After formality examination, substantive examination will be conducted.
If the requirements for registration are not met, a notice of refusal will be issued. The reasons for refusal must be resolved within 15 months of the notice of refusal.
If the reasons for refusal remain unresolved, the Registrar will issue a refusal decision. If the applicant is dissatisfied with the refusal decision, he or she may appeal to the Federal Court.
If the requirements for registration are satisfied or the reasons for refusal are resolved by a response to the notice of refusal, the application will be published.
(6) Application announcement
- If the registration requirements are met, the contents of the application will be published.
(7) Opposition (pre-grant opposition)
- Any person may file an opposition within two months from the date of publication of the application.
(8) Registration
- If no opposition is filed within the time limit or if all opposition proceedings are dismissed or decided in favor of the applicant, the Registrar will register the trademark.
(9) System for trial to cancel non-use
- Anyone may request cancellation of a registered trademark if five years have passed since the application date and the trademark has not been used for three or more consecutive years.
- Cancellation is possible for each product/service.
C. Trademark Infringement
- Use as a trademark any sign that is substantially identical or deceptively similar to a registered trademark in connection with the goods ("Registered Goods") or services ("Registered Services") in respect of which the trademark is registered.
- Where a person uses a sign that is substantially identical or deceptively similar to a registered trademark in relation to goods of the same kind as the "registered goods", services closely related to the "registered goods", services of the same kind as the "registered services", or goods closely related to the "registered services" (unless the person proves that his/her use of the sign is not likely to deceive or cause confusion).
- The use of a mark that is substantially identical with, or deceptively similar to, a well-known Australian mark in relation to goods or services that are not in the same category as, or closely related to, the registered goods ("unrelated goods"), or services that are not in the same category as, or closely related to, the registered services ("unrelated services"), if such use is likely to indicate a connection with the registered owner and the interests of the registered owner are likely to be adversely affected.
- Where the registered owner of a trademark or an authorized user of the trademark has committed any of the following prohibited acts despite having displayed on the registered goods or their packaging or on the containers in which they are offered to the public ("prohibition warnings"):
- (a) the application of the trademark to, or in physical relation to, registered goods after the state, condition, exterior or packaging of those goods has been altered in any way in which they were first made available to the public;
- (b) Altering or partially obliterating or concealing the appearance of a trademark as applied to or in physical relation to a registered good;
- (c) the whole or part of the obliteration or concealment of a mark when the mark is applied to or in physical relation to other goods representing that the registered owner or authorized user is dealing in those goods, without obliterating or concealing the whole of the other goods.
- (d) Using other trademarks on the registered goods or in physical relationship with the registered goods
- (e) Using on any product or its packaging or container which is likely to damage the reputation of the trademark if the trademark is applied to the registered goods or is used in physical relationship with the registered goods.
D. Treaties
The status of membership in the main treaties is as follows.
| treaty of paris | WTO agreement | trademark law treaty | madpro | nice agreement |
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